Appellate Division Issues Decision Clarifying How To Calculate Schedule Loss of Use For Shoulder Injuries

IssueIn determining the Schedule Loss of Use (SLU) percentage applicable to a shoulder injury, whether it is appropriate to assign separate loss of use values for deficits in anterior flexion and abduction or if this is duplicative and results in an inflated SLU percentage.

Facts of CaseClaimant was a Correctional Officer who injured himself while working in July 2013. The claim was established for a right shoulder injury. At permanency, the claimant’s treating physician opined claimant had 90% SLU of the right arm while an IME opined the claimant had 50% SLU of the right arm. Following litigation of the issue, the law judge credited the IME opinion over that of the treating physician and found claimant to have 50% SLU of the right arm. The Workers’ Compensation Board affirmed the Law Judge’s finding and the claimant appealed to the Third Department.

DecisionBoard decision is affirmed, finding claimant to have 50% SLU of the right arm. The Court noted “the Board is vested with the authority to resolve conflicting medical opinions concerning the SLU percentage to be assigned to aspecific injury.” Additionally, the Court noted “judicial review is limited, and the Board’s determination will not be disturbed as long as it is supported by substantial evidence.”

The Court reviewed how each of the medical experts came to their conclusion under the 2012 “New York State Guidelines for Determining Permanent Impairment and Loss of Wage￼￼￼￼￼￼￼ Earning Capacity.” Both the treating physician and IME had assigned a 10% value due to claimant’s rotator cuff tear as required by a special consideration in the guidelines. The IME assigned a 40% loss of use for the decrease in range of motion in anterior flexion and abduction to 90 degrees under table 2.11, resulting in a total SLU finding of 50%. The treating physician also assigned a 40% loss of use for the decrease in range of motion in anterior flexion to 90 degrees under table 2.11. However, in addition to this and the 10% loss of use attributable to the rotator cuff, the treating physician assigned another 40% loss of use for the decrease in range of motion in abduction to 90 degrees under section 2.5 (3) of the guidelines, resulting in a total SLU of 90%.

The Court noted the 2012 permanency guidelines do not address whether it is appropriate to assign separate loss of use values for deficits in anterior flexion and abduction. The Court ruled the Board has rendered multiple recent decisions that “concluded that separate values should not be assigned for anterior flexion and abduction deficits indetermining an SLU award for a shoulder injury. Significantly, the Board noted that adding together separate values for anterior flexion and abduction deficits could produce an entirely illogical result. Specifically, the combined value could exceed 80%, the SLU percentage that under the guidelines is applicable to a claimant with ankylosis – an impairment of the shoulder restricting the range of motion to zero degrees – and a claimant with a lesser injury and greater range of motion might actually obtain a more favorable SLU award.”

CommentaryThis decision clarifies how Schedule Loss of Use issues should be resolved when there are deficits in anterior flexion and abduction under the 2012 permanency guidelines. As of January 1, 2018 the Board implemented new SLU guidelines. The new guidelines do not leave this issue up to the interpretation of the Court, instead the guidelines specifically state “if a defect of both flexion (forward elevation) and abduction are documented, the greater of the two defects must be utilized, not both. However, if the defect in both ranges of motion are moderate or higher, and the measures are within 10 degrees of each other, up to 10% may be added to the overall schedule loss of use, not to exceed ankylosis.”

Additionally, under the new SLU guidelines the claimant would not be entitled to the automatic 10% value for the rotator cuff tear, this special consideration has been removed from the 2018 SLU guidelines.

This decision makes perfect sense. If under the 2012 guidelines a claimant with zero range of motion in their shoulder (ankylosis) is not entitled to greater than an 80% SLU of the arm then it would not make sense for an individual with significantly better range of motion findings to be found to have a greater SLU.

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Declan is an attorney licensed to practice law in New Jersey, New York and the U.S. District Court of New Jersey. Declan is a Partner at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. He can be reached directly at dgourley@lois-llc.com or 201-880-7213.

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